Citation Nr: 0505278
Decision Date: 02/24/05 Archive Date: 03/04/05
DOCKET NO. 97 19-030 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1971 to
January 1974.
This appeal to the Board of Veterans' Appeals (Board) arose
from an August 1996 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Boston, Massachusetts,
which denied the veteran's petition to reopen his previously
denied claim for service connection for PTSD. In April 1999,
the Board reopened this claim - based on the submission of
new and material evidence, and remanded it to the RO for
further development and consideration. Specifically, the
Board directed the RO to attempt to verify the veteran's
alleged stressors.
FINDING OF FACT
PTSD did not originate in service and is not otherwise
causally related to the veteran's military service.
CONCLUSION OF LAW
PTSD was not incurred or aggravated during service.
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.1, 3.6, 3.159, 3.303 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106,
5107, 5126 (West 2002), became effective on November 9, 2000.
Implementing regulations were created, codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The VCAA and
implementing regulations eliminated the requirement of
submitting a well-grounded claim, and provide that VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim, but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. The VCAA and implementing regulations also
require VA to notify the claimant and the claimant's
representative of any information, and any medical or lay
evidence, not previously provided to the Secretary that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative of which portion of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant. 38 U.S.C.A. §
5103(a) (West 2002); Charles v. Principi, 16 Vet. App. 370,
373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-
87 (2002).
In this case, the VCAA was enacted 4 years after the RO's
August 1996 decision, and over 1 1/2 years after the Board's
remand. So obviously compliance with the explicit timing
requirements of §5103(a) would seem impossible without the
nullification of the RO's initial decision. But in Pelegrini
II, the Court stated it was (1) "neither explicitly nor
implicitly requiring the voiding or nullification of any AOJ
[agency of original jurisdiction] action or decision and (2)
the appellant is entitled on remand to VCAA-content-complying
notice." Id. at 122; see also VAOPGCPREC 7-2004 (July 6,
2004). The Court further stated that in order to comply with
the veteran's right to appellate review under 38 C.F.R.
§7194(a), a remand may require readjudication of the claim by
the AOJ once complying notice is given, unless AOJ
adjudication is waived by the claimant. Id. at 123-124,
citing Disabled Am. Veterans v. Sec'y of Veterans Affairs,
327 F. 3d 1339, 1341-42 (Fed. Cir. 2003) ("holding that the
Board is not permitted, consistent with section 7104(a) to
consider 'additional evidence without having to remand the
case to the AOJ for initial consideration [or] without having
to obtain the appellant's waiver [of such remand]'").
A remand for this reason, however, is unnecessary because any
defect with respect to the timing of the VCAA notice was
merely harmless error. The RO sent several letters to the
veteran informing him of the VCAA, its various provisions,
the evidence needed to support his claim, the evidence that
had been received, the evidence that was still needed, and
the RO's and his responsibility in obtaining such evidence.
These letters were provided to him in October 2002, April
2003, and March 2004, but he failed to respond to any of
them. So while the VCAA notice was not sent prior to the
RO's August 1996 adjudication of the claim, he has been
provided with every opportunity to submit additional evidence
and argument in support of it. Moreover, in its most recent
August 2004 supplemental statement of the case (SSOC) the RO
considered the claim based on the additional evidence
submitted or otherwise obtained since the initial rating
decision at issue and statement of the case (SOC) and any
prior SSOCs. Therefore, notwithstanding the requirements of
Pelegrini II as to the timing of the VCAA notification,
deciding this appeal at this juncture is not prejudicial
error to the veteran.
The Court also held in Pelegrini II that a VCAA notice
consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Id., at *23. This new
"fourth element" of the notice requirement comes from the
language of 38 C.F.R. § 3.159(b)(1).
In a precedent opinion, VA's General Counsel addressed the
issue of the "fourth element" of the VCAA notice as
outlined by the Court in Pelegrini I. See VAOPGCPREC 1-04
(Feb. 24, 2004). The "fourth element" language in
Pelegrini I is substantially identical to that of Pelegrini
II, as mentioned, requiring VA under 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b)(1) to request the claimant provide
any evidence in his or her possession that pertains to the
claim. Id. The General Counsel's opinion held that this
language was obiter dictum and not binding on VA. See
VAOPGCPREC 1-04 (Feb. 24, 2004); see also Pelegrini II, 18
Vet. App. 112, 130 (2004) (Ivers, J., dissenting). In
addition, the General Counsel's opinion stated VA may make a
determination as to whether the absence of such a generalized
request, as outlined under § 3.159(b)(1), is harmful or
prejudicial to the claimant. For example, where the claimant
is asked to provide any evidence that would substantiate his
or her claim, a more generalized request in many cases would
be superfluous. Id. The Board is bound by the precedent
opinions of VA's General Counsel, as the chief legal officer
for the Department. 38 U.S.C.A. § 7104(c) (West 2002).
Here, although the October 2002, April 2003, and March 2004
VCAA letters that were provided to the veteran do not contain
the precise language specified in
38 C.F.R. § 3.159(b)(1), the Board finds that he was
otherwise fully notified of the need to give VA any evidence
pertaining to his claim. The VCAA letters requested that he
provide or identify any evidence supporting his claim and
specifically outlined the necessary evidence and the need to
identify his in-service stressors with as much detail as
possible. So a more generalized request with the precise
language outlined in § 3.159(b)(1) would be redundant. The
absence of such a request is unlikely to prejudice him, and
thus, the Board finds this to be harmless error.
VAOPGCPREC 1-04 (Feb. 24, 2004).
With respect to the VCAA letters of October 2002 and April
2003, the veteran was requested to respond within 60 days.
These letters also informed him that he could take up to one
year to respond without jeopardizing the potential effective
date for compensation - should, in fact, his claim be
granted. The March 2004 letter, however, did not request
that he respond within any specific time period.
38 C.F.R. § 3.159(b)(1) (2003) was invalidated by the United
States Court of Appeals for the Federal Circuit in Paralyzed
Veterans of America (PVA) v. Secretary of Veterans Affairs,
345 F.3d 1334 (Fed. Cir. September 2003). The offending
regulatory language suggested that an appellant must respond
to a VCAA notice within 30 days and was misleading and
detrimental to claimants whose claims were prematurely denied
short of the statutory one-year period provided in
38 U.S.C.A. § 5301(a). Thus, that regulatory provision,
which is similar to the 60-day notices alluded to above, was
invalid because it was inconsistent with the statute.
The PVA decision created some confusion about whether VA
could actually decide claims prior to the expiration of the
one-year statutory period. See PVA; see also 38 U.S.C.A.
§ 5103(b)(1)(2002). This is significant because, previous to
this, VA had issued implementing regulations that allowed VA
to decide a claim 30 days after sending a VCAA notification
letter, see 38 C.F.R. § 3.159(b)(1).
In response, on December 16, 2003, the President signed H.R.
2297, the Veterans Benefits Act of 2003 (the Act). Veterans
Benefits Act of 2003, Pub. L. No. 108-183, 117 Stat. 2651
(Dec. 16, 2003). Section 701 of the Act contains amendments
to 38 U.S.C.A. §§ 5102 and 5103, the provisions of law that
deal with VA's duties to notify and assist claimants. See
VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000); 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326.
In particular, the Act clarifies that VA may make a decision
on a claim before the expiration of the one-year VCAA notice
period. Veterans Benefits Act of 2003, Pub. L. No. 108-183,
§ ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at
38 U.S.C.A. § 5103(b)(3)). The effective date of that
provision is November 9, 2000, the date of enactment of the
VCAA. Veterans Benefits Act of 2003, Pub. L. No. 108-183,
§ ___, 117 Stat. 2651, ___ (Dec. 16, 2003) (to be codified at
38 U.S.C.A. § 5103(c)). The new law does not require VA to
send a new notice to claimants. Veterans Benefits Act of
2003, Pub. L. No. 108-183, § ___, 117 Stat. 2651, ___ (Dec.
16, 2003) (to be codified at 38 U.S.C.A. § 5103(e)).
Because Congress made the new amendments effective
retroactive to the date of the VCAA, they effectively
overturn, or invalidate, the Federal Circuit's holding in PVA
and, thus, preclude any possible due process violations, even
if the veteran's appeal was ongoing during this change in the
law. Cf. VAOPGCPREC 7-2003 (Nov. 19, 2003); Bernard v.
Brown, 4 Vet. App. 384 (1993).
In this case, the RO obtained the veteran's service medical
records (SMRs), his medical records from the Brockton and
Boston VA medical centers (VAMCs), and private medical
records from Mount Pleasant Hospital, Quincy Hospital,
Pembroke Hospital, and Dr. Swan were submitted. Although the
RO sent him three VCAA notice letters with requests for more
specific information relating to his in-service stressors, he
has not responded or otherwise indicated he has any
additional relevant information or evidence to submit, or
which needs to be obtained. And although offered, he
declined his opportunity for a hearing to provide oral
testimony in support of the claim. 38 C.F.R. § 20.700(a)
(2004).
In sum, the record reflects that the facts pertinent to this
claim have been properly developed and that no further
development is required to comply with the provisions of the
VCAA or the implementing regulations. Accordingly, the Board
will address the merits of the claim.
Factual Background
The veteran's SMRs are negative for any indication of a
psychiatric disorder. One month prior to enlistment, in
December 1970, his psychiatric evaluation was normal. It was
also reported as normal in December 1971, and again upon
discharge in January 1974. His SMRs are also negative for
any combat-related injuries, or any other indication that he
was involved in combat with the enemy.
The veteran's DD 214 indicates he served in Vietnam from
December 14, 1972 to December 20, 1972; from January 9, 1973
to January 19, 1973; from February 22, 1973 to April 19,
1973, and from June 18, 1973 to July 18, 1973. His DD 214
lists his military occupation specialty (MOS) as motor
vehicle operator. He received the National Defense Service
Medal, the Vietnamese Service Medal w/1* (Vietnam) and Rifle
Sharpshooter M-14.
In April 1981, the veteran filed a claim for service
connection for PTSD. He submitted a discharge summary from
Mount Pleasant Hospital, which indicates he was hospitalized
in October 1979 for acute alcoholism, drug abuse, and anxiety
tension state. He also submitted medical records from April
1981, which indicate he was depressed, anxious, and had
trouble sleeping - primarily due to his experiences in
Vietnam.
The report of the August 1981 VA examination indicates the
veteran complained of trouble sleeping, headaches, and bouts
of depression. He said his military experience involved
mining North Vietnamese waters with gun boats circling every
day. He said he did not see anyone killed, however, he was
quite affected by the constant circling of enemy gunboats.
He also said that he saw a buddy drown while he was in the
United States. Upon mental examination, his mood was very
markedly lowered. There was a detached air, and one of
disinterest. The affect was one of self-condemnation and
hopelessness, and he was easily startled by noises outside
the room. He was diagnosed with PTSD, alcohol abuse and
"phase-of-life problem."
In November 1981, the RO denied his claim for service
connection for PTSD.
Records from the Brockton VAMC indicate the veteran was
admitted for chronic substance dependence in October 1985,
substance abuse and alcohol dependence in May 1987, and drug
detox in August 1993.
An April 1995 medical record from Pembroke Hospital indicates
the veteran complained that he could not calm down. He was
diagnosed with recurrent major depression, and mixed panic
disorder.
A May 1995 medical record from Dr. Millen notes no evidence
of depression. The doctor noted that inpatient
rehabilitation was recommended for substance abuse, and that
he would not treat the veteran long term without him
successfully going through drug rehabilitation. He noted "a
4 month long saga of abuse of office staff and inappropriate
requests for medicine that can be abused."
Medical records from the Boston VAMC indicate the veteran was
admitted in November 1995 for polysubstance abuse. He was
diagnosed with heroin dependence, benzodiazepine abuse,
alcohol abuse, status post motor vehicle accident, status
post hepatitis, depression and PTSD. He was released after 6
days of Methadone treatment.
In March 1996, the veteran filed a petition to reopen his
previously denied claim for service connection for PTSD. He
stated that he was a door gunman in Vietnam. He also stated
that he served aboard the U.S.S. New Orleans and Tripoli, and
that he received ground fire while on board these ships and
aircrafts.
A letter from Dr. Swan received in June 2000, indicates the
doctor believed the veteran had post-traumatic stress
syndrome with panic disorder. He was being treated with
Klonopin.
In October 2002, the RO sent the veteran notice of the VCAA,
and requested he submit a detailed statement outlining the
events that led to his claim of PTSD. It informed him that
his previous statements were vague and too general to allow
for a search of military records to verify his stressors. In
April 2003, the RO sent him another letter requesting that he
identify the specific stressors relating to his PTSD. He
failed to respond to either letter.
A complete copy of his personnel records were received by the
RO May 2004. Records indicate he served in Vietnam with the
HHM-165 (Marine Medium Helicopter Squadron). His combat
history and expeditions include participation in ready ops
aboard the U.S.S. New Orleans in contiguous waters of the
Republic of Vietnam from February 14-20, 1972, and from
January 9-19, 1973. He also participated in Operation End
Sweep aboard the U.S.S. New Orleans from February 22, 1973 to
April 19, 1973, and aboard the U.S.S. Tripoli from June 18,
1973 to July 18, 1973. His record of service confirms that
his MOS throughout his tours in Vietnam was motor vehicle
operator.
In May 2004, the RO requested that the Marine Corps provide
any evidence it might have of the veteran's in-service
stressors. The Marine Corps responded by stating that the
information provided by the veteran was insufficient for
conducting a meaningful search. Nonetheless, it suggested
the RO contact the Marine Corps Historical Center for
information concerning his unit history. In July 2004, the
Naval Historical Center responded with copies of the Command
History Reports and Ship Deck Logs for the U.S.S. New Orleans
and Tripoli.
Naval records for the U.S.S. New Orleans do not note any
enemy fire from December 14-20, 1972, January 9-19, 1973, or
February 22-April 19, 1973. Naval records for the U.S.S.
Tripoli indicate it was involved in Operation End Sweep in
the Gulf of Tonkin June 18-July 18, 1973. Records note that
the U.S.S. Tripoli became the focal point for End Sweep
negotiations with the North Vietnamese, and participated in
minesweeping without any enemy fire noted.
Governing Statutes and Regulations
Service connection is granted for a disability resulting from
disease or injury incurred in or aggravated by service. 38
U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2004). Service connection for PTSD, in
particular, requires medical evidence establishing a
diagnosis in accordance with 38 C.F.R. § 4.125(a) (the
diagnosis must conform to DSM-IV and be supported by findings
on examination), credible supporting evidence that the
claimed in-service stressors actually occurred, and a link,
established by medical evidence, between the current
symptomatology and the claimed in-service stressors. 38
C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128,
137-138 (1997).
The evidence necessary to establish the occurrence of a
recognizable stressor during service-to support a diagnosis
of PTSD-will vary depending upon whether the veteran engaged
in "combat with the enemy," as established by recognized
military combat citations or other official records. See,
e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v.
Brown, 6 Vet. App. 283, 289 (1994). If VA determines that
the veteran engaged in combat with the enemy and his alleged
stressor is combat-related, then his lay testimony or
statement is accepted as conclusive evidence of the
stressor's occurrence and no further development or
corroborative evidence is required-provided that such
testimony is found to be "satisfactory," i.e., credible, and
"consistent with the circumstances, conditions, or hardships
of service." See 38 U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(d) (2004); Zarycki v. Brown, 6 Vet.
App. 91, 98 (1993). If, however, VA determines either that
the veteran did not engage in combat with the enemy or that
he did engage in combat, but that the alleged stressor is not
combat related, then his lay testimony, in and of itself, is
not sufficient to establish the occurrence of the alleged
stressor. Instead, the record must contain other objective
information that corroborates his testimony or statements.
See Zarycki, 6 Vet. App. at 98.
When there is a current diagnosis of PTSD, the sufficiency of
the claimed in-service stressor is presumed. Cohen, 10
Vet. App. at 144. Nevertheless, credible evidence that the
claimed in-service stressor actually occurred is still
required. 38 C.F.R. § 3.304(f) (2004). And credible
supporting evidence of the actual occurrence of an
in-service stressor cannot consist solely of after-the-fact
medical nexus evidence. See Moreau v. Brown, 9 Vet. App.
389, 396 (1996). Corroboration does not require, however,
"that there be corroboration of every detail including the
appellant's personal participation in the identifying
process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997).
Mere presence in a combat zone is not sufficient to show that
a veteran actually engaged in combat with enemy forces. Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991), affirmed on
reconsideration, 1 Vet. App. 406 (1991). On the other hand,
whether a veteran has submitted sufficient corroborative
evidence of claimed in-service stressors is a factual
determination. Pentecost v. Principi, 16 Vet. App. 124
(2002). And in both Pentecost and Suozzi, it was held that
specific evidence that a veteran was actually with his unit
at the time of an attack is not required to verify that
attack as a PTSD stressor. Pentecost, 16 Vet. App. at 128
(holding that the Board erred in "insisting that there be
corroboration of the veteran's personal participation");
Suozzi, 10 Vet. App. 310 - 11 (evidence that veteran's
company received heavy casualties during an attack, even
without specific evidence that the veteran was "integrally
involved in the attack" was sufficient to reopen his claim
for service connection for PTSD).
Pursuant to the holdings in Pentecost and Suozzi, there does
not need to be corroboration of each and every detail of the
veteran's personal participation in the alleged combat
activity in Vietnam. Rather, the mere fact that his unit was
involved in that combat activity is reason enough, alone, to
presume that he experienced the type of stressor alleged in
that capacity. Thus, his combat stressor must be conceded,
particularly when all reasonable doubt is resolved in his
favor concerning this. See 38 C.F.R. §3.102 (2004); Alemany
v. Brown, 9 Vet. App. 518, 519 (1996).
In determining whether service connection is warranted, VA is
responsible for considering both the positive and negative
evidence. If the evidence, as a whole, is supportive or is
in relative equipoise (i.e., about evenly balanced), then the
veteran prevails. Conversely, if the preponderance of the
evidence is negative, then service connection must be denied.
See 38 C.F.R. § 3.102 (2004); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990); Alemany v. Brown, 9 Vet App. at 519. See
also Dela Cruz v. Principi, 15 Vet. App. 143, 148-49 (2001)
("[T]he VCAA simply restated what existed in section 5107
regarding the benefit-of-the-doubt doctrine" and does not
mandate a discussion of all lay evidence of record.)
Legal Analysis
In this case, the record does not indicate the veteran
engaged in combat with the enemy. Although he participated
in several operations in the waters contiguous to the
Republic of Vietnam, mere presence in a combat zone is not
sufficient to show that he actually engaged in combat with
enemy forces. See Wood v. Derwinski, 1 Vet. App. at 193. So
his lay statements describing his in-service stressors are
not sufficient, in and of themselves, to establish a claim
for PTSD. Corroboration of his in-service stressors is
needed.
During the 1981 VA examination, the veteran was diagnosed
with PTSD. The Board notes, however, that this diagnosis was
based upon his self-reported history of combat and without a
detailed review of the claims file. So this diagnosis must
be carefully considered in light of any information VA has
received corroborating his reported stressors.
During the August 1981 VA examination, the veteran stated he
was involved in de-mining missions in North Vietnamese
waters, and that the constant circling of enemy gunboats was
very stressful. When he filed a petition to reopen his
claim, he stated that he was a door gunner while in Vietnam,
and had received ground fire while on board ships and
aircrafts. His personnel records, however, indicate he was a
motor vehicle operator during his tours in Vietnam.
Furthermore, records from the U.S.S. New Orleans and U.S.S.
Tripoli do not report any enemy fire during the time he was
on board those vessels. So the evidence of record simply
does not corroborate his reported in-service stressors.
The VCAA obligates VA to assist the veteran in obtaining
evidence necessary to support his claim. VA's success in
obtaining relevant evidence is largely dependent, however, on
cooperation from him. In the case of records requested to
corroborate a claimed stressful event in service, the
claimant must provide information sufficient for the records
custodian to conduct a search of the corroborative records.
38 C.F.R. §3.159 (2004). Unfortunately, even after repeated
requests from the RO, the veteran in this case did not
provide specific information relating to his in-service
stressors. So his in-service stressors could not be
verified, and therefore, his claim for PTSD must be denied.
For these reasons, the claim for service connection for PTSD
must be denied because the preponderance of the evidence is
unfavorable, meaning the benefit-of-the-doubt doctrine does
not apply. 38 C.F.R. § 3.102 (2004); see also
Alemany v. Brown, 9 Vet. App. at 519; Gilbert v. Derwinski, 1
Vet. App. at 57.
ORDER
The claim for service connection for PTSD is denied.
____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs